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Lanham Act

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Citation Edit

Lanham Trade-Mark Act of 1946, 50 Stat. 427 (Jul. 5,1946), codified, as amended, at 15 U.S.C. 1051 et seq. (full-text).

Overview Edit

The Lanham Act (officially known as the Lanham Trade-mark Act of 1946) allows sellers and producers of goods and services to prevent a competitor from:

(1) using any counterfeit, copy, or imitation of their trademarks (that have been registered with the U.S. Patent and Trademark Office), in connection with the sale of any goods or services in a way that is likely to cause confusion, mistake, or deception,[1] or

(2) using in commercial advertising any word, term, name, symbol, or device, or any false or misleading designation of origin or false or misleading description or representation of fact, which:

(a) is likely to cause confusion, mistake, or deception as to affiliation, connection, or association, or as to origin, sponsorship, or approval, of his or her goods, services, or commercial activities by another person, or
(b) misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.[2]

In addition, the Lanham Act grants to owners of famous trademarks the right to seek injunctive relief against another person’s use in commerce of a mark or trade name if such use causes dilution by blurring or tarnishment of the distinctive quality of the famous trademark.[3]

The Lanham Act has been amended more than 30 times since its effective date on July 5, 1947, in response to lobbying efforts by trademark owners seeking greater protection for their marks, new technological developments such as the Internet, and U.S. treaty obligations mandating uniformity of U.S. intellectual property law with that of other countries.[4]

First Amendment Edit

The Second Circuit has held that the Lanham Act "should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweights the public interest in free expression."[5]

Registration Edit

Under the Lanham Act, a merchant or manufacturer that wants to use a mark on a product or service must register that mark with the U.S. Patent and Trademark Office (PTO) to obtain federal protection for the mark. Failure to register a mark with the PTO does not mean that the entity using the mark has not established rights in it; once the mark is first used in commerce (a good bearing the mark is sold to the public in a bona fide transaction), state common law confers trademark protection to the mark.[6]

However, the Lanham Act provides substantial benefits and incentives to the trademark owner to seek federal trademark registration, including the following:[7]

References Edit

  1. 15 U.S.C. §1114(1).
  2. Id. §1125(a)(1).
  3. Id. §1125(c)(1).
  4. Roger E. Schechter & John R. Thomas, "Intellectual Property: The Law of Copyrights, Patents and Trademarks" §25.2.5 (2003).
  5. Rogers v. Grimaldi, 875 F.2d 994, 999, 10 U.S.P.Q.2d (BNA) 1825 (2d Cir. 1989)(full-time).
  6. Schechter §26.2.
  7. U.S. Patent & Trademark Office, "Should I Register My Mark?"[1]

See also Edit

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